STACK 
ANNEX 


116 

342 


Ke  Defective  in  Jewish 
aw    and     literature 


Eg  A  PAPER  READ  BEFORE  THE 

NEW  YORK  BOARD  OF  JEWISH  MINISTERS 


BY 


RABBI  JOEL  BLAU,  B.  A. 


NEW  YORK 

BLOCH  PUBLISHING  COMPANY 
1916 


Copyright,  1916,  by 
BLOCH  PUBLISHING  COMPANY 


CONTENTS 


INTRODUCTION       1 

GENERAL  CONSIDERATIONS 3 

LEGAL  STATUS 9 

(a)  Chasakah 9 

(b)  Zechiyah 10 

(c)  Inheritance       10 

(d)  Sales       12 

(e)  Honor 13 

(f)  General  Legal  Standing 13 

(g)  Status  of  the  Blind 14 

(h)  Marriage  and  Divorce 14 

RELIGIOUS  STATUS 17 

THE  AGGADAH  20 


2117616 


THE  DEFECTIVE  IN  JEWISH  LAW 
AND  LITERATURE 


INTRODUCTION 

There  are  two  typical  attitudes  toward  the 
phenomena  of  existence.  One  may  simply  take  these 
phenomena  for  granted,  unquestioningly,  uncom- 
plainingly. Whatever  their  cause  and  origin,  they  are 
here  and  must  be  dealt  with  somehow.  They  must  be 
adjusted  to  men  and  men  must  be  adjusted  to  them, 
according  to  the  demands  and  limitations  of  the 
individual  and  of  society.  Or  again,  one  may  refuse 
to  take  them  for  granted.  One  may  go  behind  these 
phenomena  and  inquire  into  their  cause.  To  him  who 
adopts  the  latter  attitude,  practical  means  of  adjust- 
ment are  not  satisfactory,  his  concern  being  to  find 
those  higher,  ideal  adjustments  whereby  life  as  a 
whole,  with  its  light  and  shadow,  may  be  shown  to 
conform  to  the  laws  of  mind  and  morals,  of  reason- 
ableness and  righteousness. 

The  difference  between  these  two  attitudes  is 
particularly  apparent  in  the  case  of  such  phenomena 
as  introduce  jarring  discord  into  human  life.  Facing 

1 


2  The  Defective  in 

such  discord,  the  problem  of  the  human  mind  is :  How 
is  it  to  be  brought  into  harmony  with  God's  creative 
plan?  with  God's  attributes  of  justice  and  mercy? 
Now,  one  may  simply  ignore  this  problem,  saying  that 
this  is  one  of  the  "hidden  things  that  belong  to  the 
Eternal,"  and  then  proceed  to  deal  with  the  "revealed 
things  that  belong  to  us."  Causes  are  hidden,  but, 
effects  are  revealed;  and  one  may  be  content  to  deal 
with  the  human  effects  rather  than  with  the  divine 
causes  of  existing  ills.  Or  again,  one  may  boldly 
venture  into  the  region  of  causality  and,  troubled  by 
the  wailing  sounds  and  festering  sights  of  human 
suffering,  one  may  ask  the  age-long  question  of  a  Job 
or  a  Jeremiah,  How  can  God  afflict  the  sons  of  men  so 
grievously  ? 

In  a  word,  the  one  attitude  deals  with  a  scheme  of 
human  government,  the  other,  with  a  scheme  of  divine 
government. 

These  attitudes,  as  here  set  forth,  are  represented 
in  Jewish  Literature  by  the  Halacha  and  the  Aggadah, 
respectively.  In  this  broad  view,  of  course,  the  terms 
Halacha  and  Aggadah  are  not  to  be  taken  as  referring 
merely  to  the  Talmud  and  Midrashim  but  also  to  the 
Bible,  for  the  Bible,  too,  has  its  Halachistic,  or 
legalistic  contents,  as  well  as  its  Aggadistic,  or  non- 
legalistic  portions.  Whether  in  the  Bible  or  in  the 
rabbinic  interpretations,  this  characteristic  distinction 
between  Halacha  and  Aggadah  can  be  traced  through- 
out. The  Halacha  does  not  concern  itself  with  the 
causes  of  phenomena,  only  with  their  effects.  It  does 
not  seek  for  an  ideal  world-view;  it  views  the  world 
as  it  is  and  deals  with  it  in  a  practical  way.  The 


Jewish  Law  and  Literature  3 

Aggadah,  on  the  contrary,  searches  for  the  causes  of 
things — causes  that  lie  concealed  in  the  lap  of  God — 
whose  workings,  though  seemingly  evil,  are  yet  per- 
ceived to  accord  with  His  eternal  goodness.  Since 
now  the  distressing  phenomenon  presented  by  the 
existence  of  mentally  and  physically  defective  men 
and  women  is  one  of  the  discordant  elements  of  human 
life,  we  should  expect  to  find  with  regard  to  it  a 
marked  difference  between  the  attitude  of  the  Halacha 
and  that  of  the  Aggadah.  The  Halacha  accepts  the 
phenomenon  of  Subnormality  and  tries  to  bring  it  into 
right  relations  with  man;  the  Aggadah  inquires  into 
the  why  and  wherefore  of  Subnormality  and  en- 
deavors to  bring  it  into  right  relations  with  God. 

General  Considerations 

The  Halacha  deals  chiefly  with  the  following  types 
of  Subnormality: 

1.  Cheresh — deaf-mute  or  deaf ; 

2.  Illem — mute ; 

3.  Shoteh — feeble-minded,     monomaniac,     or 

insane ; 

4.  Nichpeh — epileptic ; 

5.  Suma — blind ; 

6.  Tumtum  ve-Androgunos — Neuter  and  Her- 

maphrodite ; 

7.  Saris  ve-Aylonith — the  sterile  in  both  male 

and  female. 

It  is  to  be  noted  that  Deafmutism  and  Insanity  are 
most  frequently  met  with  in  the  Halacha,  much  more 
frequently  than  all  other  types  of  Subnormality.  We 


4  The  Defective  in 

are  nevertheless  not  justified  in  inferring  from  this 
circumstance  that  these  two  afflictions  were  the  most 
prevalent  ones  among  Jews ;  rather  is  the  explanation 
to  be  found  in  the  fact  that  these  are  the  farthest 
departures  from  the  normal  state,  and  hence  called  for 
numerous  special  measures. 

Further  be  it  noted  that  the  Talmud  as  well  as  the 
Codes  always  mention  the  deafmute  and  the  insane 
together  with  the  minor  as  belonging  to  the  selfsame 
class  of  the  legally  incompetent  and  mentally  irrespon- 
sible. Deafmutism  according  to  the  Talmud  consti- 
tutes a  mental  defect  no  less  than  a  physical  affliction. 
The  rabbinic  dictum  is :  "Cheresh  lav  bar  deah  hu"1 
But  the  disqualifying  element-in  deaf  mutism  is  rather 
deafness  than  dumbness.  Maimonides,  in  his  Com- 
mentary on  Terumoth,  declares  that  the  cause  of 
dumbness  lies  in  congenital  deafness.2  Hence  the 
tendency  in  the  Codes — specifically  in  the  Yad 
Hachazakah  and  the  Shulchan  Aruch — is,  on  the 
whole,  to  include  the  deaf  who  speak  with  the  deaf 
and  dumb  in  the  same  legal  provisions,  though  it  is 
conceded  that  the  former,  unlike  the  latter,  may  be  of 
sound  minds.3  There  is,  however,  scarcely  any  doubt 
about  the  mental  competency  of  the  illem — the  dumb 
who  can  hear — though,  by  reason  of  his  affliction,  he 
is  to  some  extent  legally  disqualified;  for  in  the  case 
of  the  hearing  mute  the  ear  is  an  ingress  to  the 


iChag.  2b ;  Git.  23a. 

2Terumoth  I,  2.  The  statement,  in  the  same  passage,  that 
the  "illem"  was  included  by  the  Rabbis  in  the  definition  of 
"cheresh"  is  unintelligible  and  does  not  tally  with  the  known 
.Rabbinic  pronouncements  on  the  subject. 

3Maim.  Yad,  Eduth  IX,  11. 


Jewish  Law  and  Literature  5 

understanding.  In  the  Talmud,4  the  verse :  "That  they 
may  hear  and  that  they  may  learn"5  is  applied  also  to 
the  hearing  mute,  who  can  learn  because  they  can  hear ; 
and  in  corroboration  of  this,  a  touching  story  is  told  of 
two  mutes  who  listened  diligently  to  the  teachings  of 
R.  Yehudah  Ha-Nassi,  their  heads  nodding  and  their 
lips  moving  with  the  vain  effort  to  speak.  Rabbi  took 
pity  on  them  and  prayed  for  them,  whereupon  they 
obtained  the  power  of  speech  and  were  found  to  be 
well-versed  in  all  the  disciplines  of  the  Law. 

As  we  follow  the  evolution  of  the  Talmudical  law 
concerning  the  divers  classes  of  mutes  through  the 
various  codes,  the  matter  becomes  more  and  more 
involved ;  but  the  impression  gained  throughout  is, 
that  the  original  law  is  gradually  applied  with  increas- 
ing rigor  even  to  such  mutes  as  cannot  be  classed 
among  the  mentally  incompetent.  Originally,  the  in- 
tention of  the  Rabbis  seems  to  have  been  to  disqualify 
the  hearing-mute  and  the  speaking-deaf  solely  on 
technical  grounds  in  cases  where  the  faculties  of 
speech  and  audition  are  indispensable  requirements. 
For  instance,  the  deaf  though  speaking,  and  the  mute 
though  hearing,  cannot  serve  as  witnesses,  since  they 
cannot  comply  with  the  requirements  of  "hearing"  and 
"telling"  adumbrated  in  Lev.  V,  I.6  But  in  other 
respects,  where  the  question  of  mental  soundness  is  not 
at  issue,  there  was  no  intention  to  disqualify  these  two 
classes  of  mutes.  In  fact,  the  Mishnah7  lays  down  the 


4Chag.  8a. 
5Deut.  xxxi,  12. 
«Git.  71a. 
7Terumoth  I,  2. 


6  The  Defective  in 

principle  that  wherever  the  word  "Cheresh"  occurs, 
only  the  deaf-mute  are  meant  thereby;  and  the 
Gemarah,8  in  quoting  this  Mishnaic  principle,  cites  in 
support  thereof,  a  Baraitha  which  expressly  declares 
that  both  the  speaking-deaf  and  the  hearing-mute  are 
to  be  dealt  with  as  mentally  competent,  though  this 
same  Baraitha,  harking  back  to  the  Psalm-verse :  "And 
I  am  like  a  "Cheresh"  that  heareth  not  and  like  an 
"Illem"  that  openeth  not  his  mouth,"9  holds  that  the 
term  Cheresh  refers  both  to  deafmute  and  speaking- 
deaf.  It  is  plain,  therefore,  that  while  as  a  matter  of 
terminology  the  speaking-deaf  are  classed  with  deaf- 
mute,  as  a  matter  of  law  they  are  classed  with  the 
hearing-mute.  Nevertheless,  this  principle  is  not 
sustained  in  the  Codes.  For  instance,  in  the  matter  of 
the  validity  of  sales  negotiated  by  the  various  kinds  of 
mutes,  R.  Jacob  b.  Asher  in  his  Tur,10  basing  himself 
probably  on  the  Mishnah  in  Gittin  VII,  I,11  classes  the 
hearing-mute  with  the  deafmute,  and  the  speaking- 
deaf  with  the  normal;  while  Maimonides12  and  R.  J. 
Caro13  class,  conversely,  the  speaking-deaf  with  the 
deaf-mute  and  the  hearing-mute  with  the  normal,  both 
thus  reversing  the  Mishnaic  definition  of  Cheresh. 
Indeed,  one  is  led  to  conclude,  that  Maimonides  con- 


8Chag.  2b. 

8Ps.  xxxviii,  14. 

10Choshen  Mishpat  Chap.  235. 

"Wrongly,  I  believe,  for  the  discrimination  shown  there 
against  the  mute  refers  only  to  "nishtatek,"  one  who  became 
dumb  through  sudden  illness,  in  which  case  the  question  of 
sanity  might  be  mooted,  but  not  to  "illem,"  who  is  considered 
a  mentally  sane  being. 

"Maim.    Yad,  Mechirah  XXIX,  13. 

"Chosh.  Mishp.  Chap.  235. 


Jewish  Law  and  Literature  7 

sidered  the  deduction  from  the  above  Psalm-verse 
conclusive,  thus  raising  mere  terminology  to  the  im- 
portance of  law.14  The  net  result  of  all  this  is,  that 
the  attitude  of  the  law  becomes  more  rigorous  towards 
all  classes  of  the  mute  and  the  deaf,  their  sanity  being 
more  or  less  challenged. 

But  of  course,  the  mentality  of  the  deaf  or  mute, 
even  of  the  deafmute,  is  not  placed  by  the  Rabbis  on 
the  same  low  level  as  that  of  the  insane.  In  many 
ways  the  deafmute  were  regarded  legally  competent. 
The  Rabbis,  then,  recognised  degrees  of  mental  in- 
capacity. However,  as  to  the  mental  alienation 
proper,  they  made  no  rigorous  distinction  between  the 
feeble-minded  and  the  insane.  Maimonides  has  a 
distinct  reference  to  monomania  in  a  ruling  to  the 
effect  that  the  monomaniac  is  incompetent  even  in 
matters  concerning  which  he  is  rational.16  We  do  how- 
ever find  that  the  Rabbis  attempted  to  define  mental 
alienation  by  distinct  criteria.  These  Rabbinic  criteria 
are  as  follows:16  "He  who  takes  a  solitary  stroll  by 
night  (exposing  himself  to  ghosts)  ;  he  who  spends  the 
night  in  the  cemetery;  he  who  wildly  tears  his  gar- 
ments ;  or  he  who  destroys  everything  given  him."  No 
trouble  need  be  taken  to  compare  these  criteria  with 


14Cf.  his  Commentary  on  Terumoth  I,  2 — where  he  says : 
"In  our  language,  Cheresh  means  one  who  does  not  hear," 
which  suggests  that  he  was  influenced  by  considerations  of 
language,  of  terminology  and  definition.  Note,  however,  Yad, 
Ishuth  II,  26,  where  Maimonides  uses  the  term  "illem"  for 
the  deafmute;  and  where,  moreover,  he  says  that  the 
speaking-deaf  and  the  hearing-mute  are  to  be  regarded  as 
normal  human  beings. 

18Maim.  Yad,  Mechirah  IX,  9. 

"Chag.  3b. 


8  The  Defective  in 

the  strict  medical  tests  of  our  own  time ;  nor  need  the 
rabbinic  test  of  insanity  be  taken  too  literally,  the 
Rabbis  having  had  in  mind  not  so  much  specific  criteria 
as  types  of  action  evidencing  eccentricity  of  some 
sort.17  The  underlying  principle,  then,  is  eccentricity, 
which  fully  accords  with  the  modern  idea  of  mental 
aberration. 

Epileptics  are  characterised  as :  "Ittim  shafui,  ittim 
shoteh"  They  are  classed  with  the  insane  during  the 
fit ;  with  the  normal,  during  their  lucid  intervals.18 

Most  tersely  is  the  incompetency  of  these  defectives, 
both  deafmute  and  insane,  expressed  by  the  Mishnah 
in  the  following  statement:  "Yesh  lahem  ma'asseh 
ve-en  lahem  machashavah" — they  are  capable  of 
action  but  not  of  thought.19  In  the  Gemarah,  however, 
not  even  this  concession  is  made  to  them,  R.  Amai 
saying:20  "Rov  maassehem  mekulkalim" — "their  ac- 
tions are  for  the  most  part  inefficient." 

Leaving  out  the  blind,  as  requiring  little  comment, 
let  these  general  considerations  be  concluded  with  a 
word  about  the  sex-freaks.  The  rabbis  regarded  both 
Tumtum  and  Androgunos,  but  especially  the  latter,  as 
"Biryah  bifene  'atzmah,"  as  a  distinct  creature.81 
Tumtum  is  a  kind  of  neuter  in  whom  sex  has  not 
declared  itself,  but  may  at  any  time  do  so  either  in  the 


17V.  Kesef  Mishneh  on  Yad,  Eduth  IX,  9:  "Ledugma 
naktinhu." 

18Rosh-Hash.  28a,  where  the  term  "chalim"  is  used  for 
"shafui" — lucid,  sane ;  Maim.  Yad,  Mechirah  XXIX,  5. 

"Machshirin  III,  8;  VI,  1;  Taharoth  VIII,  6. 

20Chulin  26a. 

"Yevamoth  83a;  99b;  Bikkurim  IV,  5. 


Jewish  Law  and  Literature  9 

direction  of  masculinity  or  femininity;  while  Andro- 
gunos,  or  hermaphrodite,  is  a  bisexual  person, 
possessing  for  ever  the  characteristics  of  both  male 
and  female.22  The  Rabbis,  commenting  on  the  verse : 
"male  and  female  created  he  them,"  maintain  that  the 
first  human  creature  was  an  Androgunos.23  This  is 
of  some  interest  in  view  of  the  problem  in  biological 
evolution,  whether  the  hermaphrodite  or  the  dioecious 
state  is  the  primitive  one.24  Finally,  the  sterile  of  both 
sexes  are  recognised  by  the  absence  of  signs  of  puberty 
and,  in  addition,  by  a  masculine  voice  in  females  and 
feminine  voice  in  males.25 

And  now  we  may  proceed  to  set  forth  in  detail  the 
status  of  the  defective,  both  legal  and  religious.  By 
legal  status  is  meant  their  standing  in  secular  matters, 
including  marriage  and  divorce;  by  religious  status, 
the  extent  of  their  participation  in  the  religious  life  of 
the  Jew. 

Legal  Status 

(a)  Chasakah 

Chazakah  is  the  right  of  ownership  by  virtue  of 
undisputed  tenure  for  a  definite  length  of  time.  The 


"Yevamoth  83b;  Maim.  Yad,  Ishuth  II,  24-25. 

23  A  variant  of  this  view  is  that  Adam  was  a  "du-partzufin," 
a  kind  of  twin-creature,  male  and  female  grown  together 
back  to  back,  which  was  afterwards  separated  by  the  well- 
known  operation ;  but  the  authorship  of  these  two  views  is 
confused  in  the  respective  passages.  V.  Bereshith  R.  VIII; 
Vayikra  R.  XIV;  Eruvin  18a;  Berachoth  61a. 

24Balfour,  Comp.  Embryol.     Introd.  p.  11. 

2BYevamoth  80b ;  Maim.  Yad,  Ishuth  II,  6. 


10  The  Defective  in 

deafmute  and  the  insane  are  not  allowed  such  pre- 
sumption of  ownership  by  actual  possession.2* 

(b)  Zechiyah — Gifts 

The  act  of  the  acceptance  of  a  gift  constitutes  a 
legal  title  thereto.  .  This  is  called  Zechiyah.  In  this 
sense,  a  man  may  also  act  as  a  proxy  and  receive 
property  for  others,  the  legal  title  thereto  being  estab- 
lished in  their  favor  the  moment  the  property  is  trans- 
ferred to  him.  Here  a  distinction  is  made  between  the 
insane  and  the  deafmute.  The  insane  can  neither  make 
nor  receive  gifts,  nor  yet  can  they  accept  property  for 
others;  whereas  the  deafmute  can  accept  gifts  for 
themselves,  though  they  cannot  make  gifts  nor  receive 
them  for  others.  A  normal  person,  however,  may 
receive  gifts  for  insane.27 

(c)  Inheritance 

In  seeming  contradiction  to  the  laws  of  Zechiyah, 
are  the  laws  of  inheritance.  Both  insane  and  deafmute 
may  make  and  receive  bequests.  For  the  principle 
here  involved  is  entirely  different  from  that  under- 
lying transfer  of  property.  The  right  of  inheritance 
does  not  involve  a  conscious  transfer  of  property 
requiring  legally  competent  agents;  it  is  an  inherent 
right,28  working  quite  automatically;  an  inheritance, 
according  to  rabbinic  terminology,  "falls"  to  the  heir. 
Hence  the  question  of  sanity  is  beside  the  point.  The 


26Maim.  Yad,  To'en  XIII,  2;  Chosh.  Mishp.  149,  18— based 
on  Mishnah  B.  Bathra  III,  3. 

27Maim.  Yad,  Zechiyah  IV,  6—7;  Chosh.  Mishp.  243,  14-16, 
based  on  Gittin  64b.  See  also  Yad,  Mechirah  XXIX  1-4. 

28Mishnah  B.  Bathra  126a;  Maim.  Yad.,  Nachaloth  VI,  1. 


Jewish  Law  and  Literature  11 

only  provision  of  the  law  is  that  in  the  case  of  an 
insane  or  deafmute  heir,  the  court  is  to  appoint  a 
trustee  or  guardian  to  manage  the  estate.29  All  this, 
however,  applies  only  to  natural  heirs,  but  not  to  the 
heirship  of  husbands,  if  either  party  to  the  marriage 
is  deafmute.  In  such  a  case,  if  the  wife  is  a  deafmute, 
the  husband  cannot  inherit  her  property,  though  he  be 
normal ;  but  if  the  wife  is  normal  and  the  husband  is  a 
deafmute,  he  can  inherit  her  property.30  The  reason 
for  this  discrimination  lies  in  the  fact  that  the  right  of 
the  husband  to  inherit  his  wife's  property  is  not  an 
inherent  right  as  in  the  case  of  blood-relations.  The 
latter  inherit  by  virtue  of  Pentateuchal  law,  while 
husbands  are  entitled  to  the  estate  of  their  wives  only 
by  virtue  of  a  Rabbinic  ordinance.31  The  heirship  of  a 
husband,  then,  is  in  the  nature  of  a  deed  implied  in  the 
marriage  act.32  Hence,  in  the  case  of  deafmutes,  there 
applies  to  the  heirship  of  husbands  not  the  law  of 
inheritance  but  the  law  of  Zechiya.  Therefore,  if  the 
wife  is  deafmute,  the  husband  cannot  inherit  her 
property,  though  he  be  normal,  since  the  deafmute 
cannot  effect  a  transfer  of  property ;  but  if  the  wife  is 
normal,  he  can  inherit  her  estate,  though  he  be  deaf- 
mute,  since  she,  as  responsible  agent,  can  transfer  her 
property ;  and  he  as  deafmute  can,  in  keeping  with  the 


29Kethuboth  48a;  Maim.  Yad,  Nachaloth  X,  5  and  7;  ibid., 
Mechirah  XXIX,  3 ;  Chosh.  Mishp.  290,  1-27. 

3°Maim.  Yad,  Ishuth  XXII,  4;  ibid.,  Nachaloth  I,  9. 

81Kethuboth  84a;  Maim.  Yad,  Nachaloth  I,  8.  Note  also 
that  the  marriage  of  deafmutes  itself  is  valid  only  by  Rabbinic 
ordinance,  which,  however,  cannot  explain  the  fact  that  the 
deafmute  husband  of  a  normal  wife  is  her  heir. 

32Note  the  familiar  Rabbinic  principles :  "Kol  dimekadesh 
ada'ata  dirabanan  mekadesh." 


12  The  Defective  in 

law  of  Zechiyah  above  set  forth,  receive  property. 
On  these  same  grounds,  the  husband  cannot  be  heir  to 
his  wife's  estate,  if  either  party  to  the  marriage  be 
insane,  since  the  insane  can  neither  make  nor  receive 
gifts — apart  from  the  fact  that  the  marriage  of  the 
insane  has  barely  any  standing  in  the  eyes  of  the  law.83 

(d)  Sales 

The  difference  between  the  insane  and  the  deaf- 
mute  is  most  strikingly  shown  in  the  matter  of  the 
validity  of  sales.  Sales  or  purchases  by  the  insane, 
whether  in  chattel  or  real  estate,  are  invalid ;  while  the 
commercial  transactions  of  the  deafmute  and  the 
speaking-deaf  are  valid  in  respect  to  movable  goods 
but  not  in  real  estate.34  The  deafmute,  we  are  told, 
buy  and  sell  "biremizah,"  by  sign-language.35  They 
should  be,  however,  thoroughly  examined  as  to 
whether  they  understand  the  nature  of  the  deal,36 
which  again  shows,  that  the  rationality  of  the  deaf  and 
deafmute  was  questioned  in  every  way.  Indeed,  this 
provision  of  the  law  is  explained  as  a  merciful  con- 
cession, to  enable  the  deafmute  to  procure  a  liveli- 
hood.37 In  this  connection,  the  case  of  epileptics,  too, 
receives  consideration.  The  point  to  be  ascertained  in 


ssYevamoth  112b,  113a;  Maim.  Yad,  Nachaloth  I,  10. 

"Gittin  59a,  71a;  Maim.  Yad,  Mechirah  XXIX,  1-2;  Tur 
Chosh.  Mishp.  235,  17  and  corresp.  Shulchan-Aruch. 

35In  the  Mishnah  Gittin  59a,  a  distinction  is  made  between 
"remisah" — gestures  of  the  hand — and  "kefitsah" — movements 
of  the  lips;  and  the  former  is  held  more  reliable  than  the 
latter. 

88Gittin  67b,  71a;  Maim.  Yad,  ibid.,  Examination,  however, 
was  necessary  in  the  case  of  the  "illem"  too. 

"Gittin  59a;  Maim.  Yad,  Mechirah  XXIX,  1. 


Jewish  Law  and  Literature  13 

reference  to  their  transactions  is,  whether  these  took 
place  in  their  lucid  moments  or  during  the  epileptic 
seizure.88 

(e)  Honor 

From  a  human  standpoint  the  question  is  most  in- 
teresting whether  these  defectives  have  any  sense  of 
personal  honor  and  are,  hence,  entitled  to  damages 
for  insult  or  defamation  of  character.  Here  again, 
the  deafmute  are  entitled  to  damages,  while  the  insane 
are  not.39 

(f )  General  Legal  Standing 

The  general  standing  of  these  defectives  before  the 
law,  in  other  respects  than  above  specified,  is  prac- 
tically nil.  Not  being  considered  responsible  agents, 
they  are  not  liable  to  damages  for  assault  upon  others, 
while  others  are  liable  to  such  for  assault  upon  them.40 
Neither  their  claims  on  others,  nor  the  claims  of  others 
on  them,  are  heard ;  they  are  not  sworn  nor  is  an  oath 
administered  to  others  on  their  account.41  Thus,  they 
are  practically  without  redress  in  money  matters.  Nor 
are  they  accepted  as  witnesses ;  be  it  noted,  however, 
that  in  the  case  of  the  deafmute,  this  is  more  on 
account  of  technical  disability  than  of  mental  incom- 
petency;  hence,  even  the  "illem,"  who  is  otherwise 
considered  mentally  sound,  is  disqualified  as  a  witness, 
since  he  cannot  give  testimony  by  word  of  mouth,  as 


asRosh-Hash.  28a ;  Maim.  Yad,  ibid.,  5. 
39B.  Kama  86b;  Maim.  Yad,  Chovel  III,  4;  Chosh.  Mishp. 
300,  37. 

40B.  Kama  87a;  Maim.  Yad,  ibid,  IV,  20. 
41Shevuoth  38b ;  Maim.  Yad,  To'en  V,  9  and  12. 


14  The  Defective  in 

has  already  been  set  forth  above.42  Nor  yet  can  they 
act  as  agents  for  others;  but  if  they  so  act,  the  risk 
belongs  not  to  him  who  employs  them  as  intermediaries 
but  to  him  who  accepts  them  as  such  and  entrusts  aught 
to  them.43 

(g)  Status  of  the  Blind 

In  contradistinction  to  these  defectives,  the  Blind 
are  given  full  legal  rights,  except  that  they  cannot, 
on  obvious  grounds,  serve  as  witnesses  or  as  judges ; 
but  a  one-eyed  man  may  function  as  witness  though 
not  as  judge.44  Moreover,  the  blind  cannot  act  as 
bringers  of  a  Get  from  foreign  parts,  since  they 
cannot  comply  with  the  technical  requirement  of  de- 
claring :  "Befanay  nichtav" — It  was  written  and  signed 
"before"  me.46 

(h)  Marriage  and  Divorce 

The  principle  underlying  marriage  and  divorce 
between  deafmutes  or  between  deafmutes  and  normal 
persons  is,  that  such  marriages  are  valid  only  by 
Rabbinical  ordinance  and  not  by  Pentateuchal  law.46 
Hence  the  wife  in  the  case  is  entitled  to  neither  keep 
nor  Kethubah."  Both  Marriage  and  Divorce,  whether 


42General  Considerations. 

*3B.  Bathra  87b;  Maim.  Yad,  Sheluchin  II,  2. 

"Njddah  50b;  Maim.  Yad,  Eduth  IX,  12. 

48Gittin  23a,  where  the  general  disqualification  by  the 
Mishnah  is  modified  by  the  Gemara  to  apply  only  to  divorce- 
bills  brought  from  "Chutz-laaretz."  Maim.  Yad,  Gerushin 
VII,  19. 

"Yevamoth  112b;  Maim.  Yad,  Ishuth  IV,  9. 

47Yevamoth  113a;  Maim,  ibid.,  XI,  4.  This  seemingly  cruel 
provision  is  explained  as  facilitating  the  marriage  of  a  deaf- 
mute  woman. 


Jewish  Law  and  Literature  15 

she  or  he  be  deafmute,  take  place  by  Remizah — sign- 
language.48  But  if  a  deafmute  man  can  write,  he  must 
give  a  Get*9  Deafmutes,  however,  must  be  examined 
as  to  whether  they  understand  the  nature  of  the  act.80 

The  Rabbis,  however,  have  made  no  provision  for 
the  marriage  of  the  feeble-minded  and  insane.51  "Lo 
tikkenu  lahen  rabbanan  nissuin." 

As  to  the  special  divorce  regulations  applying  to  the 
deafmute  and  the  mentally  defective,  the  following  is 
to  be  noted :  If  a  woman  who  was  normal  at  the  time  of 
her  marriage  becomes  deafmute  afterwards,  the  hus- 
band has  the  alternative  of  either  retaining  or  divorcing 
her ;  but  if  a  man  who  was  normal  at  the  time  of  his 
marriage  becomes  deafmute  afterwards,  he  cannot 
divorce  her.82  But  if  a  woman  who  was  sane  at  the 
time  of  her  marriage  becomes  afterwards  irrational, 
the  husband  cannot  divorce  her.  In  strict  legality,  he 
might  divorce  her  as  long  as  she  has  sense  enough  to 
take  care  of  her  Get;  but  the  Rabbis  have  mercifully 
provided  that  he  should  never  put  her  away,  lest  she  be 
at  the  mercy  of  licentious  men.88  He  may,  however, 
marry  another  woman  without  being  guilty  of 
bigamy.84 

The  laws  of  Yibbum  and  Chalitsa  operate  in  the 


48Mishna  Yevamoth  112a:  Gittin  59a;  Maim.  Yad,  Gerushin 
88,  17. 

«Gittin  71a. 

8°Ibid. 

81  Yevamoth  112a:  "En  adam  dar  im  nachash  bichefifah 
achath — no  man  would  take  up  his  abode  with  a  serpent." 
Maim.  Yad,  Ishuth  IV,  9. 

"Yevamoth  112b;  Maim.  Yad,  Gerushin  II,  17. 

"Yevamoth  112b,  113b;  Maim,  ibid.,  X,  23. 

"Even-Haezer  119,  6. 


16  The  Defective  in 

case  of  these  defectives  in  the  following  manner :  Both 
deafmute  and  insane,  male  or  female,  can  be  parties 
to  a  levirate  marriage,  but  not  to  the  act  of  Chalitza.*6 
Hence  the  curious  situation  arises  that  a  person  who 
cannot  contract  an  ordinary  marriage,  because  of  legal 
incompetency,  can  contract  a  perfectly  valid  levirate 
marriage,  for  the  reason  that  the  validity  of  the 
levirate  marriage  is  rooted  in  the  previous  marriage 
of  the  sane  brother.  From  this  follows  that  the  wife 
of  an  insane  or  feeble-minded  person  is  subject  to 
neither  Chalitza  nor  Yibbum,59  since  her  marriage  has 
no  legal  standing.  The  wife  of  a  deafmute,  however, 
is  regarded  as  being  in  the  same  case  with  all  other 
women,  since  her  marriage  has  some  legal  standing, 
and  thus  she  can  be  a  party  either  to  Yibbum  or  to 
Chalitza.61  How  far  the  levirate  marriage  by  defec- 
tives is  valid,  is  shown  by  the  fact  that  a  deafmute 
cannot,  after  contracting  a  levirate  marriage,  divorce 
the  wife  so  wedded,  since  the  divorce  by  a  deafmute 
man  is  not  potent  enough  to  undo  a  perfectly  valid 
marriage.68  If,  however,  he  is  normal  and  his  levirate 
wife  is  deafmute,  he  can  divorce  her.59 

The  salient  features  of  the  law  regulating  the 
marriage  of  the  sexually  abnormal  are  as  follows :  In 
the  case  of  sterility,  the  marriage  is  valid  if  contracted 
with  the  full  knowledge  of  the  defect;  but  if  con- 
tracted in  ignorance  concerning  the  defect,  the  mar- 


55Yevamoth  112b;  Maim.  Yad,  Yibbum  VI,  3  and  6;  Even- 
Haezer  172,  11  and  12. 

B6Yeyamoth  96b;  Maim,  ibid.,  8;  Even-Haezer,  ibid.,  16. 
67Maim.  ibid.,  7.     See  comment  by  Maggid  M. 
58Yevamoth  112b;  Maim,  ibid.,  3. 
69Maim.  ibid.,  6. 


Jewish  Law  and  Literature  17 

riage  is  void.60  A  sterile  man  or  woman  is  not  subject 
to  Yibbum  and  Chalitza.6*  A  Tumtum  may  marry  and 
be  married,  but  such  a  marriage  is  of  dubious 
validity;62  while  an  Androgunos  can  wed  but  cannot 
be  wedded.63  Neither  is  an  Androgunos  qualified  for 
Yibbum  and  Chalitza,  while  a  Tumtum  performs  the 
act  of  Chalitza  but  cannot  contract  a  levirate 
marriage.64 

Religious  Status 

The  deafmute  and  the  insane  have  no  place  what- 
soever in  the  religious  life.  They  stand  without  the 
pale  of  Judaism.  "They  are  free  from  the  duties, 
responsibilities  and  penalties"  prescribed  by  our  re- 
ligion.65 Nor  are  they  granted  the  privileges  of 
religion.  They  cannot  officiate  in  any  religious 
capacity :  ((enam  motziin  eth  harabbim  yede  cho- 
votham."M  They  do  not  blow  the  Shofar,67  nor  do 
they  lay  an  Eruv-techumin.6s  A  slight  exception  is 
found  in  the  case  of  Shechita,  which  is  not  to  be 
performed  by  them  "lechatechila"  but  which  is  none 
the  less  kosher  if  performed  under  the  supervision  of 


«°Kethuboth  lOOb,  102b;  cf.  ibid  72b  and  Yevamoth  2b; 
Maim.  Yad,  Ishuth  XXIII,  1-2;  Even-Haezer  44,  4. 

"Yevamoth  24a,  79b ;  Maim.  Yad,  Yibbum  VI,  1  and  8. 

82Bechoroth  42b;  Yevamoth  72a;  Maim.  Yad,  Ishuth  IV, 
11 ;  Even-Haezer  44,  5. 

63Yevamoth  81a;  Maim.  Yad,  Issure-Biah  I,  15. 

"Maim.  Yad,  Yibbum,  VI,  2,  4,  8. 

«5Rashi  Chag.  3b. 

««Rosh-Hash.  29a. 

67Ibid. 

88Eruvin  31b. 


18  The  Defective  in 

competent  persons.  This,  however,  is  but  a  post- 
factum  concession:  "bedi-avad"** 

The  religious  status  of  the  blind  is  a  matter  of  some 
controversy  in  the  Talmud,  the  opinion  of  R.  Yehudah 
being  oft  quoted  to  the  effect  that  the  blind  are  free 
from  religious  duties;70  but  the  final  decision,  regis- 
tered in  the  Codes,  is  that  the  blind  are  disqualified 
only  to  the  extent  of  their  inability  to  see.  Hence  a 
blind  man  may  officiate  as  Chazan,  but  he  may  not  read 
from  the  scrolls  ;71  because  prayers  may  be  recited  by 
heart,  while  the  Law  must  be  read:  "Devarim 
shebichtav  i  attah  reshai  leomeram  'al  peh"12  He 
must  even  observe  Mitzvath  Tzitzith,  despite  the  com- 
mand, "ye  shall  see  them,"73  because  others  can  see 
the  fringes.7* 

In  connection  with  the  religious  disabilities  of  the 
insane  and  deafmute  it  is  worthy  of  note  that,  accord- 
ing to  one  authority,75  a  father  who  has  begotten  an 
insane  or  deafmute  child  has  thereby  fulfilled  Mitzvath 
Piryah-Verivyah.  One  might  suppose  that  the  bringing 
into  the  world  of  a  religiously  disqualified  child  does 
not  satisfy  the  requirements  of  this  religious  law.  In 
that  well-known  Midrash  which  tells  how  God  con- 
sulted the  angels  as  to  whether  He  should  create  man, 
the  angelic  host  ask  the  Creator:  "What  are  the 


69Chulin  2a. 

T°B.  Kama  87a;  Kiddushin  31a. 

"Megillah  24a;  Maim.  Yad,  Tefillah  VIII,  12;  Orach 
Chayyim  53,  14. 

"Gittin  60b;  Orach  Chayyim,  ibid. 

T3Num.  xv,  39. 

T*Shabbath  27b;  Maim.  Yad,  Tzitzith  III,  7;  Orach  Chayyim 
17,  1. 

7§Even-Haezer  1,  6:  gloss  by  Isserles  in  the  name  of  R, 


Jewish  Law  and  Literature  19 

potentialities  of  this  odd  creature?"  And  God 
answers,  "Tzadikkim — righteous  men — will  descend 
from  him."76  That  is  to  say,  the  mission  of  humanity 
is  spiritual,  and  it  is  only  in  the  light  of  the  spiritual 
destiny  of  mankind  that  the  perpetuation  of  the  race 
is  exalted  to  a  high  plane.  The  Midrash  even  adds 
slyly  that  God  revealed  to  the  angels  but  half  the 
truth,  for  had  He  revealed  the  other  half,  namely  that 
unrighteous  men  too  would  descend  from  Adam,  the 
Midath  Haddin — the  Attribute  of  Justice — would 
never  have  brooked  the  creation  of  man.  Well,  this  is 
Aggadah.  But  the  Halacha  on  the  one  hand  dis- 
qualifies the  child,  and  on  the  other  hand  declares 
itself  satisfied  with  the  father.  Here  one  may  already 
perceive  the  difference  between  the  attitude  of 
Halachah  and  Aggadah,  of  which  more  will  be  said 
presently. 

Before  passing  on  to  that  phase  of  the  subject,  just 
a  few  words  are  in  place  about  the  disabilities  of 
physically  defective  priests.  These  were  put  to  menial 
work  about  the  Temple,  such  as  cleaning  the  kindling 
wood  from  worms,  for  which  purpose  a  special  cell 
was  set  aside  called  "lishchath  ha' etzim."'1'1  When  we 
read  the  long  list  of  the  physical  disqualifications  in 
Lev.  xxi,  we  are  strangely  impressed  with  the  fact 
that  the  least  departure  from  bodily  perfection  unfitted 
a  man  for  service  at  God's  altar.  The  spiritual  ministry 
of  the  priest  was  hedged  in  by  exacting  physical  re- 
quirements. No  less  curious  is  the  fact  that  the 


Solomon  b.  Aderet  (end  of  13th  cent.). 
"Bereshith  R.  VIII. 
"Midoth  II,  5. 


20  The  Defective  in 

Hebrew  language,  though  impoverished  in  many 
important  respects,  has  preserved  in  this  list  as  well 
as  in  both  Tochechoth"18  so  many  words  that  describe 
unsightly  malformations  and  loathsome  diseases.  We 
lack  classic  Hebrew  terms  for  many  of  the  beautiful 
sights  and  sounds  of  this  world — for  colors,  flowers, 
trees,  birds — but  we  do  not  seem  to  be  wanting  in 
terms  that  bring  before  us  the  seamy  side  of  life,  that 
echo  the  groans  of  the  sufferers,  that  reflect  the  gloom 
of  darkened  lives.  One  is  reminded  of  those  old- 
fashioned  books  on  theology  that  contained  nine 
chapters  on  hell  and  only  one  chapter  on  heaven. 
Uppermost,  it  seems,  in  the  human  mind  is  the  sinister 
aspect,  the  sitra  achara,  of  existence.  That  aspect  we 
are  apt  to  exaggerate  beyond  all  proportion;  and, 
therefore,  it  becomes  the  business  of  the  spiritually- 
minded  thinker  to  reduce  our  morbid  imaginings  to 
their  true  measure,  to  turn  our  face  toward  the  light, 
to  show  how  in  the  divine  scheme  of  things,  light  and 
shadow  sing  the  same  song  of  everlasting  justice  and 
mercy. 

The  Aggadah 

That  song  was  caught  and  set  to  human  words  by 
the  Aggadah. 

While  the  Halacha  coolheadedly  accepted  conditions, 
and  dealt  in  a  practical  way  with  the  grim  realities  of 
Subnormality,  the  Aggadah  asked  searching  questions 
and  dealt  with  the  dim  idealities  of  Subnormality. 

Now  behind  every  question  that  the  human  intellect 


"Lev.  xxvi,  16;  Deut.  xxviii,  20-22,  27-29,  34,  35. 


Jewish  Law  and  Literature  21 

ever  asked  there  was  an  emotional  crisis,  a  shock. 
And  it  behooves  us  to  find  out  the  nature  of  the 
shock  that  led  the  Aggadists  to  inquire  into  the  causes 
of  Subnormality,  always  bearing  in  mind  that  while 
the  Halachah  confines  itself  to  adjusting  the  physical 
order  unto  itself,  the  Aggadah  tries  to  adjust  the 
physical  order  to  a  higher  spiritual  order. 

What,  then,  was  the  nature  of  this  shock?  On  the 
physical  side,  it  is  not  to  be  supposed  that  the  sight 
of  bodily  imperfection  left  the  Rabbis  of  the  Aggadah 
altogether  untouched.  The  Greeks  had  no  monopoly 
in  the  high  regard  for  the  body  beautiful.  The  Jew, 
too,  appreciated  bodily  perfection.  It  would  take  one 
too  far  afield  to  enumerate  all  the  passages  in  Bible  and 
Talmud  that  show  admiration  for  well-favored  men 
and  women.  One  example  shall  suffice.  The  Rabbis 
say  that  God  takes  pride  in  men  of  tall  stature,79  basing 
their  statement  on  the  verse:  "And  I  have  destroyed 
the  Amorites  before  them,  whose  height  was  like  the 
height  of  cedars  and  he  was  strong  as  the  oaks."80 
The  Rabbis  felt  that  this  verse,  though  referring  to 
the  destruction  of  those  remarkable  specimens  of 
stalwart  humanity,  still  reflected  the  divine  pride,  as 
it  were,  in  the  tall  and  vigorous  human  frame. 

Nevertheless,  while  the  Jew  appreciates  physical 
wholeness,  the  Jewish  Genius  is  not  primarily 
esthetical ;  it  is  essentially  ethical.  Hence  we  are  not 
to  expect  that  the  shock  which  the  Aggadists 
experienced  when  facing  the  phenomenon  of  Sub- 


™Bechoroth   45b. 
80 Amos  ii,  9. 


22  The  Defective  in 

normality  was  an  esthetic  one,  a  rude  jarring  of  their 
esthetic  sensibilities ;  nor  that  the  causes  they  sought 
to  learn  were  of  a  physical  nature.  In  conformity  with 
the  constitution  of  the  Jewish  Genius,  the  shock  they 
experienced  was  an  ethical  shock,  a  painful  upheaval 
of  their  moral  being ;  and  the  causes  they  searched  for, 
in  order  to  regain  their  own  spiritual  equilibrium,  were 
accordingly  of  an  ethical  nature.  Facing  Subnormality, 
the  Aggadists  asked:  How  can  such  things  be  in  a 
world  presided  over  by  a  righteous  God? 

In  proof  of  this,  it  is  to  be  noted  that  the  general 
Rabbinic  theory  of  human  suffering  is  that  it  is  caused 
by  moral  turpitude.  "En  yissurim  beli  avon" — no  Sin, 
no  Suffering.81  In  regard  to  Subnormality,  however, 
the  Rabbis  are  still  more  specific,  assigning  certain 
defects  to  certain  definite  immoral  acts.  Lameness, 
mutism,  blindness  and  deafmutism  in  children  are 
ascribed  to  various  kinds  of  incontinence  and  un- 
chastity  practised  by  parents  during  co-habitation.81 
A  judge  who  takes  bribe  will  be  stricken  with  blind- 
ness;83 this  view  is  of  course  based  on  the  literal 
interpretation  of  the  verse :  "For  the  gift  blindeth  the 
wise."84  Lastly,  the  Rabbis  tell  us  that  malingerers, 
who  sham  blindness  or  other  defects  in  order  to 
excite  sympathy  and  receive  undeserved  bounty,  will 
yet  be  stricken  before  they  die  with  the  very  affliction 
they  feign.86 


81Shabbath  55a.  See  also  Berachoth  5a:  "im  roeh  adam. 
yissurim  bairn  'alav  yefashpesh  bema'assav;"  and  Gittin  70a: 
"Sheloshah  devarim  makchishin  kocho  shel  adam:  pachad, 
derech,  avon." 

82Nedarim  20a. 

83Peah  8,  9;  cf.  Kethuboth  105a. 

84Deut.  xvi,  19. 

85Peah,  ibid.,  Kethuboth  68a. 


Jewish  Law  and  Literature  23 

It  is  thus  that  the  Rabbis  tried  to  trace  the  moral 
causes  of  Subnormality.  It  is  thus  that  they  en- 
deavored to  fit  the  latter  into  the  divine  world-scheme. 
The  defective  is  more  or  less  guilty  of  sin,  or  at  best 
was  conceived  in  the  sin  of  others.  It  is  perhaps  for 
this  reason,  that  the  Levitical  laws  were  so  scrupulous 
with  regard  to  the  physical  wholesomeness  of  the 
priesthood.  A  seeming  contradiction  to  this  theory  as 
to  the  moral  causes  of  Subnormality  is  to  be  found  in 
Ex.  iv,  11.  In  this  verse  God  answers  Moses'  com- 
plaint about  his  slight  impediment:  "Who  hath  made 
man's  mouth,  or  who  maketh  the  dumb,  or  the  deaf, 
or  the  seeing,  or  the  blind?  Have  not  I  the  Lord?" 
According  to  the  literal  meaning,  this  verse  refers  to 
the  innocent  Moses.  The  philosophy  reflected  in  this 
verse  is  that  God  in  His  inscrutable  wisdom  grants  or 
withholds  the  faculties  of  the  body  regardless  of  the 
merit  of  the  individual.  This,  then,  would  tend  to 
upset  the  Rabbinic  theory.  But  here  again  the  Rabbis 
are  true  to  themselves  and  exhibit  their  consistency  to 
a  striking  degree.  For  this  same  verse,  as  explained 
by  the  Rabbis,  assumes  a  different  meaning,  one  that 
tends  to  support  the  Rabbinic  view  of  Subnormality. 
They  say88  that  when  Pharaoh  wanted  to  have  Moses 
put  to  death  for  killing  the  Egyptian,  all  his  wise  men 
became  incapacitated :  some  of  them  went  blind,  some 
dumb,  some  deaf,  and  some  lame.  When  Pharaoh 
issued  the  command  to  seize  Moses,  the  blind  could 
not  see,  the  dumb  could  not  speak,  the  deaf  could  not 
hear,  and  the  lame  could  not  run.  Thus  Moses 


"Shir-Hashirim  R.  VII. 


24  The  Defective  in 

escaped.  Now,  say  the  Rabbis,  the  verse  in  question 
refers  to  that  incident.  In  other  words,  it  refers  not 
to  the  innocent  Moses  but  to  the  guilty  Egyptians. 

Facing  the  broken  tabernacle  of  the  body,  the  Rabbis 
recognised  in  the  battered  ruins  the  punishing  hand  of 
God.  Therefore  did  the  Rabbis  prescribe  special  forms 
of  benediction  for  those  who  happen  to  sight  a 
defective  or  a  physical  freak.  If  the  defect  is  con- 
genital, the  beholder  should  say :  "Blessed  art  thou,  etc., 
who  fashionest  thy  creatures  in  strange  ways ;"  but  if 
accidental,  he  should  say:  "Blessed  be  the  righteous 
judge."87  Nevertheless  the  Rabbis  readily  acknowl- 
edged that  the  light  of  God  may  shine  forth  brightly 
out  of  some  of  these  broken  shrines.  Mention  was 
already  made  of  the  story  of  the  two  dumb  scholars 
who  absorbed  R.  Jehudah's  discourses.  A  further 
example  in  point  is  the  familiar  figure  of  the  blind 
R.  Shesheth  whose  extraordinary  erudition  is 
emphasized,88  and  whose  acumen  forms  the  subject  of 
many  a  Rabbinical  anecdote.89  Lastly,  the  Rabbis  say 
that  Mephibosheth,  son  of  Saul,  of  whom  the  Bible 
says  that  he  was  lame  on  both  his  legs,90  was  the 
teacher  of  David,  by  whom  he  was  consulted  on  all 
occasions.91 

If  after  what  has  been  said,  further  corroboration 
be  needed  of  the  Aggadistic  attitude  towards  Sub- 
normality,  as  here  set  forth,  another  Rabbinic  story 

"Berachoth  58b. 
88Shevuoth  41b. 
89Berachoth  58a. 
9°II  Sam.  iv,  4. 
91Berachoth  4a. 


Jewish  Law  and  Literature  25 

may  be  cited.  This  story  makes  it  plain  that  the 
Rabbis  were  solicitous  about  bringing  the  phenomenon 
of  Subnormality  into  harmony  with  God's  creative 
plan.  The  story  is  that  David  said  to  God:  "How 
manifold  are  thy  works,  O  God,  in  wisdom  hast  thou 
made  them  all.92  All  that  thou  hast  created  in  thy 
world  thou  hast  made  well,  and  wisdom  is  the  best  of 
all ;  but  Madness  which  thou  hast  created — how  can  it 
benefit  the  world  ?"  God  answered,  "To  Madness  dost 
thou  object?  Wait!  thou  wilt  yet  stand  in  need  of  it; 
nay  more,  thou  wilt  miss  it  and  pray  that  I  should  give 
it  unto  thee."  Here  follows  the  account  of  David's 
coming  to  the  court  of  Achish,  King  of  Gath,  from 
whence  he  escapes  by  feigning  insanity.93  In  the 
Rabbinic  version  of  this  Biblical  story,  David  in  his 
extremity  prays  for  the  gift  of  madness,  which  is 
granted  him  for  the  moment.  And  the  story  ends  with 
David's  joyful  exclamation,  "How  desirable  is  Mad- 
ness !  I  will  bless  the  Lord  at  all  times,94  in  times  of 
wisdom  and  in  times  of  madness  !"95 

Insanity  part  of  the  moral  scheme  of  God's 
world-government  !96  Truly,  bold  Fancy  could  ven- 
ture no  farther  in  bridging  the  gulf  that  exists  in  the 
human  mind  between  God's  wisdom  and  men's  woes ! 
Our  Rabbis,  in  their  optimism,  did  turn  our  faces 
toward  the  light,  interpreting  the  dark  riddle  of  life  in 


92Ps.  104,  24. 

93I  Sam.  xxi,  13-16. 

94Ps.  44,  2. 

95Shocher-Tov  39;  Yalkut  II,  131. 

96I  feel  it  incumbent  upon  me  to  point  out  at  this  juncture 
that  I  have  not  taken  into  account  the  belief  that  insanity  is 
due  to  "possession"  by  evil  spirits,  traces  of  which  belief  may 


26  The  Defective  in 

such  a  way  that  men  of  lesser  knowledge  and  lesser 
faith  may  understand  it  and  be  comforted. 

Still  more  powerfully  do  the  notes  of  comfort  ring 
forth  out  of  the  words  of  the  prophets  of  Israel.  We 
need  not  be  surprised  that  the  prophets  included  in 
their  cosmic  vision  the  sad  phenomenon  of  Sub- 
normality.  For  these  men  of  God  dealt  as  none  other 
did  with  the  seamy  side  of  life.  And  though  their  soul 
was  mainly  troubled  by  the  prevalence  of  moral  evil, 
yet,  as  superlative  incarnations  of  the  Jewish  Genius, 
they  did  not  lose  sight  of  bodily  ills  altogether.  Both 
moral  and  physical  defects,  to  their  view,  are  inter- 
laced in  that  whimsical  underweb  which  oft  conceals 
from  our  limited  ken  the  harmony  and  the  beauty  of 
God's  world-pattern.  Hence  it  is  not  at  all  astonishing 
that  in  their  Vision  of  the  End  they  foresaw  the  dis- 
appearance not  only  of  Sin  but  also  of  Subnormality. 
And  though  some  passages  in  which  the  prophets 
speak  of  the  blind  being  made  to  see  and  the  lame  being 
made  straight-limbed  are  open  to  figurative  interpre- 
tation,97 there  is  one  passage  in  Isaiah98  lending  itself 
to  none  other  than  its  primary,  its  literal  construction, 
which  contains  the  soothing  promise:  "Then  the  eyes 
of  the  blind  will  be  opened,  and  the  ears  of  the  deaf 
will  be  unstopped.  Then  will  the  lame  leap  as  an  hart 
and  the  tongue  of  the  dumb  sing !" 

To  sum  up : — If  the  Rabbis  of  the  Aggadah  have  a 

be  found  in  the  Bible,  Rabbinic  Literature,  and  particularly 
in_  the  New  Testament;  nevertheless,  I  believe  I  am  not 
mistaken  in  stating  that  I  have,  throughout  my  presentation, 
followed  the  main  stream  of  Jewish  thought. 

87Isa.  xxix,  18;  xxxii,  4. 

"Ibid.,  xxxv,  6. 


27 


philosophy  of  Subnormality  looking  towards  its  cause 
and  origin,  the  Prophets  have  an  Eschatology  of  Sub- 
normality,  looking  towards  its  end  and  final  extinction. 
On  the  day  when  the  crooked  will  be  made  straight 
and  the  desert  bloom  as  a  rose,  both  cause  and  effect 
of  Subnormality  will  be  done  away  with,  both  soul 
and  body  will  be  made  whole.  In  the  meantime,  the 
Rabbis  of  the  Halachah,  being  practical  men,  were 
right  in  dealing  with  a  knotty  human  problem  in  a 
practical  way.  To  be  sure,  the  modern  sociological 
investigator,  searching  for  what  is  today  called  the 
social  treatment  of  the  Defective,  will  find  in  the 
Halachic  treatment  of  these  unfortunates  results  that 
are,  from  his  standpoint,  almost  wholly  negative.  Of 
social  treatment  in  the  modern  sense,  the  barest  traces 
are  to  be  seen  in  the  appointment  by  the  court  of  a 
guardian  or  trustee — more,  however,  as  an  adminis- 
trator of  the  estate  of  deafmute  or  insane  than  as  an 
embodiment  of  society's  wardenship  over  their  person ; 
and,  further,  in  the  fact  that  marriage  between  insane 
or  insane  and  normal  was  discountenanced,  though  not 
actually  prevented.  Society  was  not  ready  in  those 
days  to  mete  out  proper  social  treatment  to  its  sub- 
normal or  abnormal  members,  either  by  way  of  pre- 
vention or  cure.  Men  in  those  days  left  a  great  deal 
to  God;  and  who  can  say,  conscientiously,  that  even 
today  they  do  not  leave  to  Him  much  more  than  He 
expects  them  to  ?  Especially  in  view  of  our  own  social 
shortcomings,  let  us  admit  that,  measured  by  the 
standard  of  those  early  days,  the  Rabbis  of  the 
Halachah  had  recourse  to  such  practical  measures  as 
fitted  into  the  mold  of  their  own  time.  Thus  our  final 


28     The  Defective  in  Jewish  Law  and  Literature 

word  about  the  Defective  in  Jewish  Law  and  Litera- 
ture is,  that  if  the  Aggadists  point  the  way  to  deep 
speculation  and  the  Prophets  to  sublime  inspiration, 
the  Halachists  point  the  way  to  effective  service. 


